EXHIBIT 4.8
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[DEBT SECURITIES] [SERIES __ PREFERRED STOCK] [COMMON STOCK]
[DEPOSITARY SHARES] WARRANT AGREEMENT
dated as of ________ __, ____
between
MONSANTO COMPANY
and
[NAME OF WARRANT AGENT], as Warrant Agent
__________________________________
[Debt Securities] [Series __ Preferred Stock] [Common Stock] [Depositary Shares]
Warrants
Expiring ________ __, ____
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TABLE OF CONTENTS
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Page
PARTIES...................................................................... 1
RECITALS..................................................................... 1
ARTICLE I
ISSUANCE OF WARRANTS AND FORM, EXECUTION,
DELIVERY AND REGISTRATION OF WARRANT CERTIFICATES
SECTION 1.01. Issuance of Warrants.......................................... 2
SECTION 1.02. Form, Execution and Delivery of Warrant Certificates.......... 2
SECTION 1.03. Transfer of Warrants.......................................... 4
SECTION 1.04. Lost, Stolen, Mutilated or Destroyed Warrant Certificates..... 6
SECTION 1.05. Cancellation of Warrant Certificates.......................... 6
SECTION 1.06. Treatment of Holders [If Warrants are to be issued in
Book-Entry form: and Beneficial Owners] of Warrant
Certificates.................................................. 7
ARTICLE II
EXERCISE PRICE, DURATION, EXERCISE AND CALL OF WARRANTS
SECTION 2.01. Exercise Price................................................ 8
SECTION 2.02. Duration of Warrants.......................................... 8
SECTION 2.03. Exercise of Warrants.......................................... 8
SECTION 2.04. Adjustment Under Certain Circumstances........................10
SECTION 2.05. Call of the Warrants..........................................16
ARTICLE III
OTHER PROVISIONS RELATING TO RIGHTS OF HOLDERS
[IF WARRANTS ARE TO BE ISSUED IN BOOK-ENTRY FORM:
AND BENEFICIAL OWNERS] OF WARRANTS
SECTION 3.01. No Rights as Holders of Warrant Securities Conferred by
Warrants or Warrant Certificates..............................17
SECTION 3.02. Holder [If Warrants are to be issued in Book-Entry form:
and Beneficial Owner] of Warrant May Enforce Rights...........17
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ARTICLE IV
CONCERNING THE WARRANT AGENT
SECTION 4.01. Warrant Agent.................................................17
SECTION 4.02. Limitations on Warrant Agent's Obligations....................17
SECTION 4.03. Compliance With Applicable Laws...............................19
SECTION 4.04. Resignation and Appointment of Successor......................19
ARTICLE V
MISCELLANEOUS
SECTION 5.01. Amendments....................................................21
SECTION 5.02. Merger, Consolidation, Sale, Transfer or Conveyance...........22
SECTION 5.03. Notices and Demands to the Company and Warrant Agent..........23
SECTION 5.04. Addresses.....................................................23
SECTION 5.05. GOVERNING LAW.................................................23
SECTION 5.06. Delivery of Prospectus........................................23
SECTION 5.07. Obtaining of Governmental Approvals...........................23
SECTION 5.08. Payment of Taxes..............................................24
SECTION 5.09. Benefits of Warrant Agreement.................................24
SECTION 5.10. Headings......................................................24
SECTION 5.11. Severability..................................................24
SECTION 5.12. Counterparts..................................................24
SECTION 5.13. Inspection of Agreement.......................................24
SECTION 5.14. Board of Director Action; No Liability of Directors, Officers,
Employees or Shareholders.....................................24
SECTION 5.15. Warrant Holders Not Shareholders..............................25
EXHIBITS
EXHIBIT A. Form of Warrant Certificate
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[DEBT SECURITIES] [SERIES __ PREFERRED STOCK] [COMMON STOCK]
[DEPOSITARY SHARES] WARRANT AGREEMENT
[DEBT SECURITIES] [[SERIES __ PREFERRED STOCK] [COMMON STOCK] [DEPOSITARY
SHARES] WARRANT AGREEMENT, dated as of ________ __, ____ (as modified, amended
or supplemented, this "Agreement"), between MONSANTO COMPANY, a Delaware
corporation (the "Company") and [NAME OF WARRANT AGENT], a _________________, as
Warrant Agent (the "Warrant Agent").
W I T N E S S E T H:
[If offer consists of Debt Securities with Warrants AND/OR Warrants to
Purchase Debt Securities: WHEREAS, the Company has entered into an indenture
(the "[Senior] [Subordinated] Indenture") dated as of ______________ between the
Company and [Name of Trustee], as trustee (the "[Senior] [Subordinated]
Trustee"), providing for the issuance from time to time of its unsecured
[senior] [subordinated] debentures, notes or other evidences of indebtedness
(the "[Senior] [Subordinated] Debt Securities"), to be issued in one or more
series as provided in the [Senior] [Subordinated] Indenture; [if Warrant
Securities are not under same Indenture as Debt Securities to which they are
attached: and an Indenture (the "[Senior] [Subordinated] Indenture," the Senior
and Subordinated Indentures being referred to collectively as the "Indentures")
dated as of _________________ between the Company and [Name of Trustee], as
trustee (the "[Senior] [Subordinated] Trustee," (the Senior and Subordinated
Trustees being referred to collectively, as the "Trustees"), providing for the
issuance from time to time of its [senior] [subordinated] debentures, notes or
other evidences of indebtedness (the "[Senior] [Subordinated] Debt Securities,"
the Senior and Subordinated Debt Securities being referred to collectively as
the "Debt Securities"), to be issued in one or more series as provided in the
[Senior] [Subordinated] Indenture]; and
[If Securities and Warrants are to be offered together: WHEREAS, the
Company proposes to sell [title of Securities being offered] (the "Securities")
together with warrants (each, a "Warrant") representing the right to purchase
[title of Securities purchasable upon exercise of Warrants] [If Warrants for
Depositary Shares are to be offered: , each representing a 1/__th interest in a
share of [title of securities represented by Depositary Shares]] (the "Warrant
Securities" [If Warrants for Depositary Shares are to be offered: , which term
shall also refer, as appropriate, to such [title of securities represented by
Depositary Shares]), such warrant certificates and other warrant certificates
issued pursuant to this Agreement being herein called the "Warrant
Certificates"; and]
[If Warrants are to be offered separately: WHEREAS, the Company proposes to
sell warrants (each, a "Warrant") representing the right to purchase [title of
Securities
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purchasable upon exercise of Warrants] [If Warrants for Depositary Shares are to
be offered: , each representing a 1/__th interest in a share of [title of
securities represented by the Depositary Shares]] (the "Warrant Securities" [If
Warrants for Depositary Shares are to be offered: , which term shall also refer,
as appropriate, to such [title of securities represented by the Depositary
Shares]), such warrant certificates and other warrant certificates issued
pursuant to this Agreement being herein called the "Warrant Certificates"; and]
WHEREAS, the Company desires the Warrant Agent to act on behalf of the
Company, and the Warrant Agent is willing so to act, in connection with the
issuance, transfer, exchange, exercise and cancellation of the Warrants, and the
Company wishes to set forth in this Agreement, among other things, the
provisions of the Warrants, the form of the Warrant Certificates evidencing the
Warrants and the terms and conditions upon which the Warrants may be issued,
transferred, exchanged, exercised and canceled;
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements herein contained, the parties hereto agree as follows:
ARTICLE I
ISSUANCE OF WARRANTS AND FORM, EXECUTION,
DELIVERY AND REGISTRATION OF WARRANT CERTIFICATES
SECTION 1.01. Issuance of Warrants. Each Warrant shall represent the right,
subject to the provisions contained herein and therein, to purchase [________]
Warrant Securities [in the aggregate principal amount of $_____] at the Exercise
Price set forth in Section 2.01. [If Securities and Warrants are to be offered
together: Warrants shall be issued in units with the Securities [If Warrants are
not immediately detachable: and shall not be separately transferable [Unless
Warrants are not detachable: before ________ __, ____ (the "Detachment
Date")]].] [If Warrants are to be offered separately: Warrants shall be issued
as a separate security and shall be transferable from and after the date of
issuance.] [If Warrants are to be offered in Book-Entry form: [All] [A portion]
of the Warrants shall initially be represented by one or more Book-Entry
certificates (each, a "Book-Entry Warrant Certificate").] [If Securities and
Warrants are to be offered together and in definitive form: Each Warrant
Certificate included in such a unit shall evidence [_______] Warrants for each
[$_____ principal amount of] [_______] Securities included in such unit.] [If
Warrants are to be offered separately and in definitive form: Each Warrant
Certificate shall evidence [_______] Warrants.]
SECTION 1.02. Form, Execution and Delivery of Warrant Certificates.
(a) One or more Warrant Certificates evidencing Warrants to purchase not
more than [____] [$_______ in aggregate principal amount of] Warrant Securities
(except as
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provided in Sections 1.03, 1.04 and 2.03(e)) may be executed by the Company and
delivered to the Warrant Agent upon the execution of this Warrant Agreement or
from time to time thereafter.
(b) Each Warrant Certificate, whenever issued, shall be in registered form
substantially in the form set forth in Exhibit A hereto, with such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Agreement. [If Warrants are issued in Book-Entry form: Each
Book-Entry Warrant Certificate shall bear such legend or legends as may be
required by the Depository in order for it to accept the Warrants for its book-
entry settlement system.] Each Warrant Certificate shall be printed,
lithographed, typewritten, mimeographed or engraved or otherwise reproduced in
any other manner as may be approved by the officers executing the same (such
execution to be conclusive evidence of such approval) and may have such letters,
numbers or other marks of identification or designation and such legends or
endorsements printed, lithographed or engraved thereon as the officers of the
Company executing the same may approve (such execution to be conclusive evidence
of such approval) and as are not inconsistent with the provisions of this
Agreement, or as may be required to comply with any law or with any rule or
regulation made pursuant thereto, or with any regulation of any stock exchange
on which the Warrants [If Securities and Warrants are to be offered together: ,
the Securities] or the Warrant Securities may be listed, or to conform to usage.
Each Warrant Certificate shall be signed on behalf of the Company by its
Chairman of the Board, Chief Executive Officer, President, Chief Financial
Officer, Vice Chairman of the Board, Vice Chairman or any Vice President. The
signature of any such officer on any Warrant Certificate may be manual or
facsimile. Each Warrant Certificate, when so signed on behalf of the Company,
shall be delivered to the Warrant Agent together with an order for the
countersignature and delivery of such Warrants.
(c) The Warrant Agent shall, upon receipt of any Warrant Certificate duly
executed on behalf of the Company, countersign such Warrant Certificate and
deliver such Warrant Certificate to or upon the order of the Company. Each
Warrant Certificate shall be dated the date of its countersignature.
(d) No Warrant Certificate shall be entitled to any benefit under this
Agreement or be valid or obligatory for any purpose, and no Warrant evidenced
thereby may be exercised, unless such Warrant Certificate has been countersigned
by the manual signature of the Warrant Agent. Such signature by the Warrant
Agent upon any Warrant Certificate executed by the Company shall be conclusive
evidence that such Warrant Certificate has been duly issued under the terms of
this Agreement.
(e) If any officer of the Company who has signed any Warrant Certificate
either manually or by facsimile signature shall cease to be such officer before
such Warrant Certificate shall have been countersigned and delivered by the
Warrant Agent, such Warrant Certificate nevertheless may be countersigned and
delivered as though the
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person who signed such Warrant Certificate had not ceased to be such officer of
the Company; and any Warrant Certificate may be signed on behalf of the Company
by such persons as, at the actual date of the execution of such Warrant
Certificate, shall be the proper officers of the Company as specified in this
Section 1.02, regardless of whether at the date of the execution of this
Agreement any such person was such officer.
(f) The Holders shall [If Warrants are to be issued in Book-Entry form: ,
except as stated below with respect to Warrants evidenced by a Book-Entry
Warrant Certificate,] be entitled to receive Warrants in physical, certificated
form.
[If Warrants are to be issued in Book-Entry form: (g) A Holder shall not be
entitled to receive Warrants in physical, certificated form unless (i) the
Depositary has notified the Company that it is unwilling or unable to continue
as Depositary for such Book-Entry Warrant Certificate or if at any time it has
ceased to be a clearing agency registered under the Securities Exchange Act of
1934, as amended and the Company does not appoint a successor within 90 days, or
(ii) the Company at any time shall determine to have the Warrants represented by
definitive Warrant Certificates and shall execute and deliver to the Warrant
Agent a written order signed in the name of the Company by its Chairman of the
Board, Chief Executive Officer, President, Chief Financial Officer, Vice
Chairman of the Board, Vice Chairman or Vice President, stating that the Company
wishes to issue Warrants in definitive form in exchange for such Book-Entry
Warrant Certificate. In any such instance, and in accordance with the provisions
of this Agreement, each Holder shall be entitled to have registered in its name
the number of Warrants in definitive form equivalent to such Holder's beneficial
interest in such Book-Entry Warrant Certificate and shall receive physical
delivery of definitive Warrant Certificates representing such Warrants from the
Depositary.
(h) A Book-Entry Warrant Certificate may be exchanged for a new Book-Entry
Warrant Certificate, or one or more new Book-Entry Warrant Certificates may be
issued, to reflect the issuance by the Company of additional Warrants. To effect
such an exchange, the Company shall deliver to the Warrant Agent one or more new
Book-Entry Warrant Certificates duly executed on behalf of the Company as
provided in Section 1.02. The Warrant Agent shall authenticate each new Book-
Entry Warrant Certificate as provided in Section 1.02 and shall deliver each new
Book-Entry Warrant Certificate to the Depository. The Warrant Agent shall cancel
each Book-Entry Warrant Certificate delivered to it by the Depository in
exchange therefor, if any.]
SECTION 1.03. Transfer of Warrants.
[If Warrants are to be issued in Book-Entry form: (a) [All] [A portion] of
the Warrants shall initially be represented by one or more Book-Entry Warrant
Certificates deposited with [the Depository Trust Company] (the "Depository")
and registered in the name of [Cede & Co.], a nominee of the Depository. Except
as provided for in Section 1.03(b) hereof, no person acquiring Warrants with
book-entry settlement through the
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Depository shall receive or be entitled to receive physical delivery of
definitive Warrant Certificates evidencing such Warrants. Ownership of
beneficial interests in the Warrants shall be shown on, and the transfer of such
ownership shall be effected through, records maintained by (i) the Depository or
its nominee for each Book-Entry Warrant Certificate, or (ii) institutions that
have accounts with the Depository (such institution, with respect to a Warrant
in its account, a "Participant").]
[If Warrants are to be issued in Book-Entry form: (b) If the Depository
subsequently ceases to make its book-entry settlement system available for the
Warrants, the Company may instruct the Warrant Agent regarding making other
arrangements for book-entry settlement. In the event that the Warrants are not
eligible for, or it is no longer necessary to have the Warrants available in,
book-entry form, the Warrant Agent shall provide written instructions to the
Depository to deliver to the Warrant Agent for cancellation each Book-Entry
Warrant Certificate, and the Company shall instruct the Warrant Agent to deliver
to the Depository definitive Warrant Certificates in physical form evidencing
such Warrants. Such definitive Warrant Certificates shall be in the form annexed
hereto as Exhibit A with appropriate insertions, modifications and omissions, as
provided above.]
[If Securities and Warrants are to be offered together: (c) [If Warrants
are not immediately detachable: Prior to the Detachment Date,] Warrants may be
transferred or exchanged only together with the Security to which such Warrant
is attached, and only for the purpose of effecting, or in conjunction with, a
transfer or exchange of such Security. Furthermore, [If Warrants are not
immediately detachable: on or prior to the Detachment Date,] each transfer of a
Security on the register relating to such Securities shall operate also to
transfer the Warrants to which such Security was initially attached. [If
Warrants are not immediately detachable: From and after the Detachment Date, the
above provisions shall be of no further force and effect.]
(d) A Warrant Certificate may be transferred at the option of the Holder
thereof upon surrender of such Warrant Certificate at the corporate trust office
of the Warrant Agent, properly endorsed or accompanied by appropriate
instruments of transfer and written instructions for transfer, all in form
satisfactory to the Company and the Warrant Agent [If Warrants are to be issued
in Book-Entry form: ; provided, however, that except as otherwise provided
herein or in any Book-Entry Warrant Certificate, each Book-Entry Warrant
Certificate may be transferred only in whole and only to the Depository, to
another nominee of the Depository, to a successor depository, or to a nominee of
a successor depository]. Upon any such registration of transfer, the Company
shall execute, and the Warrant Agent shall countersign and deliver, as provided
in Section 1.02, in the name of the designated transferee a new Warrant
Certificate or Warrant Certificates of any authorized denomination evidencing in
the aggregate a like number of unexercised Warrants.
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(e) [If Warrants are not immediately detachable: After the Detachment
Date,] Upon surrender at the corporate office of the Warrant Agent, properly
endorsed or accompanied by appropriate instruments of transfer and written
instructions for such exchange, all in form satisfactory to the Company and the
Warrant Agent, one or more Warrant Certificates may be exchanged for one or more
Warrant Certificates in any other authorized denominations; provided that such
new Warrant Certificate(s) evidence the same aggregate number of Warrants as the
Warrant Certificate(s) so surrendered. Upon any such surrender for exchange, the
Company shall execute, and the Warrant Agent shall countersign and deliver, as
provided in Section 1.02, in the name of the Holder of such Warrant
Certificates, the new Warrant Certificates.
(f) The Warrant Agent shall keep, at its corporate trust office, books in
which, subject to such reasonable regulations as it may prescribe, it shall
register Warrant Certificates in accordance with Section 1.02 and transfers,
exchanges, exercises and cancellations of outstanding Warrant Certificates.
Whenever any Warrant Certificates are surrendered for transfer or exchange in
accordance with this Section 1.03, an authorized officer of the Warrant Agent
shall manually countersign and deliver the Warrant Certificates which the Holder
making the transfer or exchange is entitled to receive.
(g) No service charge shall be made for any transfer or exchange of Warrant
Certificates, but the Company may require payment of a sum sufficient to cover
any stamp or other tax or other governmental charge that may be imposed in
connection with any such transfer or exchange.
SECTION 1.04. Lost, Stolen, Mutilated or Destroyed Warrant Certificates.
Upon receipt by the Company and the Warrant Agent of evidence satisfactory to
them of the ownership of and the loss, theft, destruction or mutilation of any
Warrant Certificate and of indemnity satisfactory to them and, in the case of
mutilation, upon surrender of such Warrant Certificate to the Warrant Agent for
cancellation, then, in the absence of notice to the Company or the Warrant Agent
that such Warrant Certificate has been acquired by a bona fide purchaser, the
Company shall execute, and an authorized officer of the Warrant Agent shall
manually countersign and deliver, in exchange for or in lieu of the lost,
stolen, destroyed or mutilated Warrant Certificate, a new Warrant Certificate of
the same tenor and for a like number of Warrants. No service charge shall be
made for any replacement of Warrant Certificates, but the Company may require
the payment of a sum sufficient to cover any stamp or other tax or other
governmental charge that may be imposed in connection with any such exchange. To
the extent permitted under applicable law, the provisions of this Section 1.04
are exclusive with respect to the replacement of mutilated, lost, stolen or
destroyed Warrant Certificates and shall preclude any and all other rights or
remedies.
SECTION 1.05. Cancellation of Warrant Certificates. Any Warrant Certificate
surrendered to the Warrant Agent for transfer, exchange or exercise of the
Warrants
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evidenced thereby shall be promptly canceled by the Warrant Agent and shall not
be reissued and, except as expressly permitted by this Agreement, no Warrant
Certificate shall be issued hereunder in lieu thereof. The Warrant Agent shall
deliver to the Company from time to time or otherwise dispose of canceled
Warrant Certificates in a manner satisfactory to the Company. Any Warrant
Certificate surrendered to the Company for transfer, exchange or exercise of the
Warrants evidenced thereby shall be promptly delivered to the Warrant Agent and
such transfer, exchange or exercise shall not be effective until such Warrant
Certificate has been received by the Warrant Agent.
SECTION 1.06. Treatment of Holders [If Warrants are to be issued in Book-
Entry form: and Beneficial Owners] of Warrant Certificates. (a) The term
"Holder", as used herein, shall mean any person in whose name at the time any
Warrant Certificate shall be registered upon the books to be maintained by the
Warrant Agent for that purpose [If Warrants are not immediately detachable: or,
prior to the Detachment Date, the person in whose name the Security to which
such Warrant Certificate was initially attached is registered upon the register
relating to such Securities. At all times prior to the Detachment Date, the
Company will, or will cause the registrar of the Securities to, make available
to the Warrant Agent such information as to holders of the Securities as may be
necessary to keep the Warrant Agent's records current]. [If Warrants are to be
issued in Book-Entry form: The Holder of each Book-Entry Warrant Certificate
shall initially be [___________], a nominee of the Depository.]
[If Warrants are to be issued in Book-Entry Form: (b) The term "Beneficial
Owner" as used herein shall mean any person in whose name ownership of
beneficial interests in Warrants evidenced by a Book-Entry Warrant Certificate
is recorded in the records maintained by the Depository or its nominee, or by a
Participant [If Warrants are not immediately detachable: , or, prior to the
Detachment Date, the person in whose name the Security to which such Warrant
Certificate was initially attached is registered upon the register relating to
such Securities].]
(c) Every Holder [If Warrants are to be issued in Book-Entry form: and
every Beneficial Owner] consents and agrees with the Company, the Warrant Agent
and with every subsequent Holder [If Warrants are to be issued in Book-Entry
form: and Beneficial Owner] that until the Warrant Certificate is transferred on
the books of the Warrant Agent, the Company and the Warrant Agent may treat the
registered Holder of such Warrant Certificate as the absolute owner of the
Warrants evidenced thereby for any purpose and as the person entitled to
exercise the rights attaching to the Warrants evidenced thereby, any notice to
the contrary notwithstanding.
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ARTICLE II
EXERCISE PRICE, DURATION, EXERCISE AND CALL OF WARRANTS
SECTION 2.01. Exercise Price. The exercise price of each Warrant shall be
$________ (the "Exercise Price") [modify as appropriate to reflect terms of
offered Warrants].
SECTION 2.02. Duration of Warrants. [Subject to the limitations set forth
herein,] Each Warrant may be exercised in whole but not in part [Unless Warrants
may be exercised on only one date: on any Business Day (as defined below)
occurring during the period (the "Exercise Period") commencing on [its date of
issuance] [_________ __, ____] and ending at 5:00 P.M., New York time,] on
__________ __, ____ (the "Expiration Date"). Each Warrant remaining unexercised
after 5:00 P.M., New York time, on the Expiration Date shall become void, and
all rights of the Holder under this Agreement shall cease.
As used herein, the term "Business Day" means any day which is not a
Saturday or Sunday and is not a legal holiday or a day on which banking
institutions generally are authorized or obligated by law or regulation to close
in New York [and _____].
SECTION 2.03. Exercise of Warrants.
(a) A Holder may exercise a Warrant by delivering, not later than 5:00
P.M., New York time, on [Unless Warrants may be exercised on only one date: any
Business Day during the Exercise Period (the "Exercise Date")] [If Warrants may
be exercised on only one date: the Expiration Date] to the Warrant Agent at its
corporate trust department (i) the Warrant Certificate evidencing the Warrants
to be exercised, [If Warrants are to be issued in Book-Entry form: and, in the
case of a Book-Entry Warrant Certificate, the Warrants to be exercised (the
"Book-Entry Warrants") on the records of the Depository to an account of the
Warrant Agent at the Depository designated for such purpose in writing by the
Warrant Agent to the Depository from time to time,] (ii) an election to purchase
the Warrant Securities ("Election to Purchase"), [For definitive Warrant
Certificates: properly completed and executed by the Holder on the reverse of
the Warrant Certificate] [If Warrants are to be issued in Book-Entry form: or,
in the case of a Book-Entry Warrant Certificate, properly executed by the
Participant and substantially in the form included on the reverse of each
Warrant Certificate,] and (iii) the Exercise Price for each Warrant to be
exercised in lawful money of the United States of America by a cashier's check
or by wire transfer in immediately available funds. If any of (a) the Warrant
Certificate [If Warrants are to be issued in Book-Entry form: or the Book-Entry
Warrants,] (b) the Election to Purchase, or (c) the Exercise Price therefor, is
received by the Warrant Agent after 5:00 P.M., New York time, on [Unless
Warrants may be exercised on only one date: the specified Exercise Date, the
Warrants will be deemed to be received and exercised on the Business Day next
succeeding the Exercise Date. If the date specified as the Exercise
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Date is not a Business Day, the Warrants will be deemed to be received and
exercised on the next succeeding day which is a Business Day. If the Warrants
are received or deemed to be received after] the Expiration Date, the exercise
thereof will be null and void and any funds delivered to the Warrant Agent will
be returned to the Holder [If Warrants are to be issued in Book-Entry form: or
Participant, as the case may be,] as soon as practicable. In no event will
interest accrue on funds deposited with the Warrant Agent in respect of an
exercise or attempted exercise of Warrants. The validity of any exercise of
Warrants will be determined by the Warrant Agent in its sole discretion and such
determination will be final and binding upon the Holder and the Company. Neither
the Company nor the Warrant Agent shall have any obligation to inform a Holder
of the invalidity of any exercise of Warrants. The Warrant Agent shall deposit
all funds received by it in payment of the Exercise Price in the account of the
Company maintained with the Warrant Agent for such purpose and shall advise the
Company by telephone at the end of each day on which funds for the exercise of
the Warrants are received of the amount so deposited to its account. The Warrant
Agent shall promptly confirm such telephonic advice to the Company in writing.
(b) The Warrant Agent shall, by 11:00 A.M. on the Business Day following
the [Unless Warrants may be exercised on only one date: Exercise Date of any
Warrant] [If Warrants may be exercised on only one date: Expiration Date],
advise the Company and the [Trustee under the Indenture applicable to] [the
transfer agent and registrar in respect of] the Warrant Securities issuable upon
such exercise as to the number of Warrants exercised in accordance with the
terms and conditions of this Agreement, the instructions of each Holder [If
Warrants are to be issued in Book-Entry form: or Participant, as the case may
be,] with respect to delivery of the Warrant Securities issuable upon such
exercise, and the delivery of definitive Warrant Certificates [If Warrants are
to be issued in Book-Entry form: or one or more Book-Entry Warrant Certificates,
as appropriate,] evidencing the balance, if any, of the Warrants remaining after
such exercise, and such other information as the Company or such [Trustee]
[transfer agent and registrar] shall reasonably require.
(c) The Company shall, by 5:00 P.M., New York time, on the third Business
Day next succeeding the [Unless Warrants may be exercised on only one date:
Exercise Date of any Warrant] [If Warrants may be exercised on only one date:
Expiration Date], execute, issue and deliver to the Warrant Agent, [pursuant to
the Indenture applicable to the Warrant Securities, the Warrant Securities, duly
authenticated by the Trustee of such Indenture and in authorized denominations]
[the Warrant Securities] to which such Holder is entitled, in fully registered
form, registered in such name or names as may be directed by such Holder [If
Warrants are to be issued in Book-Entry form: or the Participant, as the case
may be]. Upon receipt of such Warrant Securities, the Warrant Agent shall, by
5:00 P.M., New York time, on the fifth Business Day next succeeding [Unless
Warrants may be exercised on only one date: such Exercise Date] [If Warrants may
be exercised on only one date: the Expiration Date], transmit such Warrant
Securities, to or upon the order of the Holder [If Warrants are to be issued in
Book-Entry
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form: or Participant, as the case may be,] together with, or preceded by the
prospectus referred to in Section 5.06 hereof. The Company agrees that it will
provide such information and documents to the Warrant Agent as may be necessary
for the Warrant Agent to fulfill its obligations hereunder.
(d) The accrual of [interest] [dividends], if any, on the Warrant
Securities issued upon the valid exercise of any Warrant will be governed by the
terms of the applicable [Indenture] [certificate of designations] and such
Warrant Securities. From and after the issuance of such Warrant Securities, the
former Holder of the Warrants exercised will be entitled to the benefits of the
[Indenture] [certificate of designations] under which such Warrant Securities
are issued and such former Holder's right to receive payments of [principal of
(and premium, if any) and interest, if any, on] [dividends and any other amounts
payable in respect of] the Warrant Securities shall be governed by, and shall be
subject to, the terms and provisions of such [Indenture] [certificate of
designations] and the Warrant Securities.
(e) Warrants may be exercised only in whole numbers of Warrants. [Unless
Warrants may be exercised on only one date: If fewer than all of the Warrants
evidenced by a Warrant Certificate are exercised, a new Warrant Certificate for
the number of Warrants remaining unexercised shall be executed by the Company
and countersigned by the Warrant Agent as provided in Section 1.02 hereof, and
delivered to the Holder at the address specified on the books of the Warrant
Agent or as otherwise specified by such Holder.]
(f) The Company shall not be required to pay any stamp or other tax or
other governmental charge required to be paid in connection with any transfer
involved in the issue of the Warrant Securities; and in the event that any such
transfer is involved, the Company shall not be required to issue or deliver any
Warrant Securities until such tax or other charge shall have been paid or it has
been established to the Company's satisfaction that no such tax or other charge
is due.
[If Warrants for Common Stock are offered: SECTION 2.04. Adjustment Under
Certain Circumstances. The Exercise Price and the number of Warrant Securities
purchasable upon the exercise of each Warrant shall be subject to adjustment [as
shall be determined by the Warrant Agent, which determination shall be final and
binding upon the Holders and the Company.] as follows:
(i) If the Company at any time after the date of this Agreement (1)
declares a stock dividend or other distribution on Securities payable in
shares, (2) subdivides the outstanding Common Stock or Preferred Stock (for
the purposes of this Section only, "Shares") or (3) combines outstanding
Shares into a smaller number of Shares, the Exercise Price to be in effect
after the time of the record date for such dividend or distribution or of
the effective date of such subdivision or combination shall be determined
by multiplying the Exercise Price in effect
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immediately prior to such time by a fraction, the numerator of which shall
be the number of Shares outstanding immediately prior to such time and the
denominator of which shall be the number of Shares to be outstanding
immediately after giving effect to such dividend, distribution, subdivision
or combination, in each case excluding any Shares held in the treasury of
the Company ("Treasury Shares"). Such an adjustment shall be made
successively whenever any event listed above occurs.
(ii) If the Company fixes a record date for the issuance of rights or
warrants to all holders of Shares entitling them (for a period expiring
within __ days after such record date) to subscribe for or purchase Shares
(or securities convertible into Shares) at a price per Share (or having a
conversion price per share, if a security convertible into Shares) less
than the current market price per Share (as defined in subsection (iv)) on
such record date, the Exercise Price to be in effect after such record date
shall be determined by multiplying the Exercise Price in effect immediately
prior to such record date by a fraction, the numerator of which shall be
the number of Shares outstanding on such record date plus the number of
Shares which the aggregate offering price of the total number of Shares so
to be offered (or the aggregate initial conversion price of the convertible
securities so to be offered) would purchase at such current market price
(as defined in subsection (iv)) and the denominator of which shall be the
number of Shares outstanding on such record date plus the number of
additional Shares to be offered for subscription or purchase (or into which
the convertible securities so to be offered are initially convertible). If
such subscription price may be paid in consideration, part or all of which
shall be in a form other than cash, the value of such consideration shall
be as determined in good faith by the Board of Directors of the Company.
Shares owned by or held for the account of the Company or any majority-
owned subsidiary of the Company shall not be deemed outstanding for the
purpose of any such computation. Such an adjustment shall be made
successively whenever such a record date is fixed; and in the event that
such rights or warrants are not so issued and to the extent they are issued
but expire unexercised, the Exercise Price shall again be adjusted to be
the Exercise Price that would then be in effect if such record date had not
been fixed.
(iii) If the Company fixes a record date for the making of a
distribution to all holders of Shares (including any such distribution made
in connection with a consolidation or merger in which the Company is the
continuing corporation) of shares of its stock, evidences of its
indebtedness or assets (other than dividends or distributions in cash
payable out of consolidated earnings or earned surplus) or subscription
rights or warrants (excluding those referred to in subsection (ii), the
Exercise Price to be in effect after such record date shall be determined
by multiplying the Exercise Price in effect immediately prior to such
record date by a fraction, the numerator of which shall be the current
market price per Share (as defined in subsection (iv) on such record date,
less the fair market value (as
- 11 -
determined in good faith by the Board of Directors of the Company) of the
portion of such shares, evidences of indebtedness, assets, subscription
rights or warrants applicable to one Share, and the denominator of which
shall be such current market price per Share. Such an adjustment shall be
made successively whenever such a record date is fixed; and if such
distribution is not so made, the Exercise Price shall again be adjusted to
be the Exercise Price which would then be in effect if such record date had
not been fixed.
(iv) For the purpose of any computation under subsections (ii) or
(iii), the current market price per Share on any record date shall be
deemed to be the average of the daily closing prices per share for the 30
consecutive NYSE trading days commencing 45 NYSE trading days before such
record date. For the purpose of all relevant provisions of this Agreement,
the closing price for each day shall be the last sale price regular way or,
in case no such sale takes place on such day, the average of the closing
bid and asked prices regular way, in either case on the NYSE, or, if the
Shares are not listed or admitted to trading on the NYSE, on the principal
national securities exchange on which the Shares are listed or admitted to
trading or, if the Shares are not listed or admitted to trading on any
national securities exchange, the average of the highest reported bid and
lowest reported asked prices as furnished by the National Association of
Securities Dealers, Inc. (the "NASD") through Nasdaq or a similar
organization if Nasdaq is no longer reporting such information (such
reported last sale price of, or such average of such bid and asked prices
for, the shares or any other securities is referred to herein as the
"Market Value" of the shares or such securities). If on any such trading
day the Shares are not quoted by any such organization, the current market
price of such Shares on such day, as determined by the Board of Directors
of the Company, shall be used.
(v) Not withstanding the foregoing, no adjustment in the Exercise
Price shall be required unless such adjustment would require an increase or
decrease of at least one percent in such price; provided, however, that any
adjustments which by reason of this subsection (v) are not required to be
made shall be carried forward and taken into account in any subsequent
adjustment. All calculations under this Section 2.04 shall be made to the
nearest cent or to the nearest one-hundredth of a Share, as the case may
be.
(vi) If at any time, as a result of an adjustment made pursuant to
this Section 2.04, the holder of any Warrant thereafter exercised becomes
entitled to receive any shares of the Company other than Shares, thereafter
the number of such other shares so receivable upon exercise of any Warrant
shall be subject to adjustment from time to time in a manner and on terms
as nearly equivalent as practicable to the provisions with respect to the
Shares contained in this Section 2.04, and the provisions of this Section
2.04 and Sections 2.02, 2.03, 2.05, 5.08
- 12 -
and 5.14 with respect to the Shares shall apply on like terms to any such
other shares.
(vii) In any case in which this Section 2.04 shall require that an
adjustment in the Exercise Price be made effective as of a record date for
a specified event, the Company may elect to defer until the occurrence of
such event the issuing to the holder of any Warrant exercised after such
record date, the Shares and other capital stock of the Company, if any,
issuable upon such exercise over and above the Shares and other capital
stock of the Company, if any, issuable upon such exercise on the basis of
the Exercise Price in effect prior to such adjustment; provided, however,
that the Company shall deliver to such holder a due xxxx or other
appropriate instrument evidencing, subject to the following proviso, such
holder's right to receive such additional Shares upon the occurrence of the
event requiring such adjustment and, provided further, to the extent such
event does not occur, the adjustment made in respect of such non-occurrence
shall be retroactive to such Record Date and affect all Warrants exercised
between such Record Date and the date of such non-occurrence.
(viii) Upon each adjustment of the Exercise Price pursuant to this
Section 2.04 each Warrant outstanding immediately prior to such adjustment
shall thereafter constitute the right to purchase, at the adjusted Exercise
Price per Share, an adjusted number of Shares determined (to the nearest
hundredth) by multiplying the number of Shares purchasable upon exercise of
a Warrant immediately prior to such adjustment by a fraction, the numerator
of which shall be the Exercise Price in effect immediately prior to such
adjustment and the denominator of which shall be the Exercise Price in
effect immediately after such adjustment; provided, however, that the
Company may elect, in substitution for the adjustment in the number of
Shares pursuant to this subsection (viii), to adjust the number of Warrants
pursuant to subsection (ix).
(ix) In substitution for any adjustment in the number of Shares
purchasable upon the exercise of a Warrant as provided in subsection
(viii), the Company may elect to adjust the number of Warrants so that each
Warrant outstanding after such adjustment in number of Warrants shall be
exercisable for one share. Each Warrant held of record immediately prior to
such adjustment of the number of Warrants shall become that number of
Warrants determined (to the nearest hundredth) by multiplying the number of
shares purchasable upon exercise of a Warrant immediately prior to such
adjustment by a fraction, the numerator of which shall be the Exercise
Price in effect immediately prior to such adjustment and the denominator of
which shall be the Exercise Price in effect immediately after such
adjustment. The Company shall make a public announcement (by news release
and by notice to any securities exchange on which the Warrants are then
listed) of its election to adjust the number of Warrants, indicating the
record date for the adjustment and, if known at the time,
- 13 -
the amount of the adjustment to be made in the number of Warrants. This
record date may be the date on which the Exercise Price is adjusted or any
day thereafter, but shall be at least 10 days later than the date of the
public announcement. Upon each adjustment of the number of Warrants
pursuant to this subsection (ix) the Company shall, as promptly as
practicable, cause to be distributed to holders of record of Warrant
Certificates on such record date Warrant Certificates evidencing the
additional Warrants to which such holders shall be entitled as a result of
such adjustment or, at the option of the Company, shall cause to be
distributed to such holders of record in substitution and replacement for
the Warrant Certificates held by such holders prior to the date of
adjustment, and upon surrender thereof if required by the Company in its
sole discretion, new Warrant Certificates evidencing all the Warrants to
which such holders shall be entitled after such adjustment. Warrant
Certificates to be so distributed may, at the option of the Company, bear
the adjusted Exercise Price and shall be registered in the names of the
holders of record of Warrant Certificates on the record date specified in
the public announcement.
(x) In the case of any reclassification or change of outstanding
Shares (other than a change in par value, if any, as a result of a
subdivision or combination), or in case of any consolidation of the Company
with any other corporation or any merger of the Company into another
corporation or of another corporation into the Company (other than a
consolidation or merger in which the Company is the continuing corporation
and which does not result in any such reclassification or change of
outstanding Shares, but including a consolidation or merger in which the
Company is the continuing corporation and in which all or a majority of the
Shares outstanding immediately prior to such consolidation (excluding
Treasury Shares) or merger are converted into, or converted into the right
to receive, consideration other than capital stock), or in case of any sale
of the properties and assets of the Company as, or substantially as, an
entirety to any other person or entity, each Warrant shall, after such
reclassification or change of Shares, consolidation, merger or sale, be
exercisable at the then Exercise Price and upon the other terms and
conditions specified in this Agreement for the number of shares of stock or
other securities or assets (which may be cash) to which a holder of the
number of Shares purchasable (at the time of such reclassification or
change of Shares, consolidation, merger or sale) upon the exercise of such
Warrant would have been entitled (other than pursuant to any applicable
dissenters rights of appraisal) upon such reclassification or change of
Shares, consolidation, merger or sale; and in any such case, the provisions
set forth in this Section 2.04 with respect to the rights and interests
thereafter of the holders of the Warrants shall be appropriately adjusted
so as to be applicable, as nearly as may reasonably be, to any shares of
stock, other securities or property thereafter deliverable on the exercise
of the Warrants. The Company shall not effect any such consolidation,
merger or sale unless, prior to or simultaneously with the consummation
thereof, the successor person or entity (if other than the
- 14 -
Company) resulting from such consolidation or merger or the corporation
purchasing such assets or other appropriate person or entity shall assume,
by written instrument executed and delivered to the Warrant Agent, the
obligation to deliver to the holder of each Warrant such shares of stock,
securities or assets as, in accordance with the foregoing provisions, such
holders are entitled to receive and to assume the other obligations of the
Company under this Warrant Agreement. [Notwithstanding the foregoing, in
the event of any such consolidation, merger or sale in which holders of the
Company's Common Stock within two years of the date of this Agreement
receive any consideration other than common stock or rights, options or
warrants to acquire common stock, the holder of each Warrant so electing in
a writing filed with the Company prior thereto, shall be entitled to
receive cash, simultaneously with the consummation of such transaction, in
an amount equal to the average closing price of the Warrant (as determined
in the same manner as the average closing price per share is determined in
the second and third sentences of subsection (iv) for the 20 NYSE trading
days immediately preceding the public announcement of such merger,
consolidation or sale.]
(xi) Except as provided in this Section 2.04, no adjustment in respect
of any dividends on the Shares shall be made during the term of a Warrant
or upon the exercise of a Warrant.
(xii) Irrespective of any adjustments in the Exercise Price or the
number or kind of shares purchasable upon the exercise of the Warrants,
Warrant Certificates theretofore or thereafter issued may continue to
express the same Exercise Price per share and number and kind of shares as
are stated on the Warrant Certificates initially issuable pursuant to this
Agreement.
(xiii) Anything in this Section 2.04 to the contrary notwithstanding,
the Company shall be entitled to make such reductions in the Exercise Price
or increase in the number of shares purchasable upon the exercise of each
Warrant, in addition to those adjustments required by this Section 2.04, as
it in its sole discretion shall determine to be advisable in order that any
consolidation or subdivision of the Shares, or any issuance wholly for cash
of any Shares at less than the current market price, or any issuance wholly
for cash of Shares or securities which by their terms are convertible into
or exchangeable for Shares, or any stock dividend, or any issuance of
rights, options or warrants referred to above in this Section 2.04, made by
the Company to its common shareholders shall not be taxable to them.
(xiv) Anything in this Section 2.04 to the contrary notwithstanding,
- 15 -
the issuance of shares, or the granting of options to purchase shares, by
the Company or its subsidiaries to any of their employees under their
employee benefit, compensation or incentive plans, as well as the issuance
of shares under any dividend reinvestment plan of the Company, are not to
be taken into consideration for adjustments under this Section 2.04.
(xv) In addition to the foregoing adjustments and without duplication,
if (x) prior to the exercise of a Warrant an event ("Event") occurs which,
under the Certificate of Determination with respect to the shares, would
require an adjustment in the number of share(s) of Common Stock into which
the one share purchasable on exercise of such Warrant would have been
convertible if such Warrant had then been exercised, then (y) after the
Event such one share shall, when acquired on exercise of the Warrant, be
convertible into the same number of share(s) of Common Stock into which it
would have been convertible if such Warrant had been exercised prior to the
Event. The adjustment required by the foregoing sentence shall be made each
time there is an Event, provided that no adjustment shall be made under
this subsection (xv) unless that adjustment results in a change of one
percent, provided further that all adjustments not made by virtue of the
preceding "provided" clause shall be carried forward and made when the
aggregate of all such adjustments results in a change of at least one
percent.]*
SECTION 2.05. Call of the Warrants. If the closing price per share for the
Shares (determined as provided in the second sentence of Section 2.04(iv)) is
greater than ___% of the Exercise Price (as defined below) then in effect for
any ___ NYSE trading days within a period of __ consecutive NYSE trading days,
the Company may elect, by written notice given within __ days after the end of
such __-day period, to redeem the Warrants, at a price of $_________ per
Warrant, on a date not less than __ days after the giving of such notice (which
date shall not be prior to _________, _________) (such date is referred to below
as the "Warrant Call Date"). The notice of the Warrant Call Date shall be given
to the Warrant Agent as provided in Section and copies of such notice shall be
mailed to the registered holders of the Warrant Certificates as provided in
Section 5.04. If there is not at any relevant time a NYSE, then business days
rather than trading days on the NYSE will be used in the foregoing provisions.
----------------------
* This provision will be used, if at all, if the Warrants are exercisable
for Preferred Stock which is convertible into Common Stock.
- 16 -
ARTICLE III
OTHER PROVISIONS RELATING TO RIGHTS OF HOLDERS
[If Warrants are to be issued in Book-Entry Form:
AND BENEFICIAL OWNERS] OF WARRANTS
SECTION 3.01. No Rights as Holders of Warrant Securities Conferred by
Warrants or Warrant Certificates. No Warrant Certificate or Warrant evidenced
thereby shall entitle the Holder thereof to any of the rights of a holder of any
Warrant Securities, including, without limitation, [the right to receive the
payments of principal of (and premium, if any) and interest, if any, on Debt
Securities purchasable upon such exercise or to enforce any of the covenants in
the Indenture] [the right to receive dividends, if any, or payments upon the
liquidation, dissolution or winding up of the Company or to exercise voting
rights, if any].
SECTION 3.02. Holder [If Warrants are to be issued in Book-Entry form: and
Beneficial Owner] of Warrant May Enforce Rights. Notwithstanding any of the
provisions of this Agreement, any Holder [If Warrants are to be issued in Book-
Entry form: and any Beneficial Owner] of any Warrant, without the consent of the
Warrant Agent or the Holder of any Warrant, may, on such Holder's [If Warrants
are to be issued in Book-Entry form: or Beneficial Owner's] own behalf and for
his own benefit, enforce, and may institute and maintain any suit, action or
proceeding against the Company to enforce, or otherwise in respect of, such
Holder's [If Warrants are to be issued in Book-Entry form: or Beneficial
Owner's] right to exercise the Warrants evidenced by any Warrant Certificate in
the manner provided in this Agreement and such Warrant Certificate.
ARTICLE IV
CONCERNING THE WARRANT AGENT
SECTION 4.01. Warrant Agent. The Company hereby appoints [Name of Warrant
Agent] as Warrant Agent of the Company in respect of the Warrants upon the terms
and subject to the conditions herein set forth, and [Name of Warrant Agent]
hereby accepts such appointment. The Warrant Agent shall have the powers and
authority granted to and conferred upon it hereby and such further powers and
authority to act on behalf of the Company as the Company may hereafter grant to
or confer upon it.
SECTION 4.02. Limitations on Warrant Agent's Obligations. The Warrant Agent
accepts its obligations herein set forth upon the terms and conditions hereof,
including the following, to all of which the Company agrees and to all of which
the rights hereunder of the Holders from time to time shall be subject:
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(a) Compensation and Indemnification. The Company agrees to pay the
Warrant Agent compensation to be agreed upon with the Company for all
services rendered by the Warrant Agent and to reimburse the Warrant Agent
for all reasonable out-of-pocket expenses (including reasonable counsel
fees) incurred by the Warrant Agent in connection with the services
rendered by it hereunder. The Company also agrees to indemnify the Warrant
Agent for, and to hold it harmless against, any loss, liability or expense
incurred without negligence, bad faith or breach of this Agreement on the
part of the Warrant Agent, arising out of or in connection with its acting
as Warrant Agent hereunder.
(b) Agent for the Company. In acting in the capacity of Warrant Agent
under this Agreement, the Warrant Agent is acting solely as agent of the
Company and does not assume any obligation or relationship of agency or
trust with any of the owners or holders of the Warrants except as expressly
set forth herein.
(c) Counsel. The Warrant Agent may consult with counsel satisfactory
to it (which may be counsel to the Company), and the advice of such counsel
shall be full and complete authorization and protection in respect of any
action taken, suffered or omitted by it hereunder in good faith and in
accordance with the advice of such counsel.
(d) Documents. The Warrant Agent shall be protected and shall incur no
liability for or in respect of any action taken or thing suffered by it in
reliance upon any notice, direction, consent, certificate, affidavit,
statement or other paper or document reasonably believed by it to be
genuine and to have been presented or signed by the proper parties.
(e) Certain Transactions. The Warrant Agent, and its officers,
directors and employees, may become the owner of, or acquire any interest
in, any Warrant, with the same rights that it or they would have were it
not the Warrant Agent hereunder, and, to the extent permitted by applicable
law, it or they may engage or be interested in any financial or other
transaction with the Company and may act on, or as a depositary, trustee or
agent for, any committee or body of holders of Warrants [If Securities and
Warrants are to be offered together: , Securities] or Warrant Securities,
or other securities or obligations of the Company as freely as if it were
not the Warrant Agent hereunder. Nothing in this Agreement shall be deemed
to prevent the Warrant Agent from acting as trustee under either Indenture.
(f) No Liability for Interest. The Warrant Agent shall not be under
any liability for interest on any monies at any time received by it
pursuant to any of the provisions of this Agreement.
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(g) No Liability for Invalidity. The Warrant Agent shall not be under
any responsibility with respect to the validity or sufficiency of this
Agreement or the execution and delivery hereof (except the due execution
and delivery hereof by the Warrant Agent) or with respect to the validity
or execution of the Warrant Certificates (except its countersignature
thereon).
(h) No Responsibility for Recitals. The recitals contained herein and
in the Warrant Certificates (except as to the Warrant Agent's
countersignature thereon) shall be taken as the statements of the Company
and the Warrant Agent assumes no responsibility hereby for the correctness
of the same.
(i) No Implied Obligations. The Warrant Agent shall be obligated to
perform such duties as are specifically set forth herein and no implied
duties or obligations shall be read into this Agreement against the Warrant
Agent. The Warrant Agent shall not be under any obligation to take any
action hereunder which may tend to involve it in any expense or liability,
the payment of which within a reasonable time is not, in its opinion,
assured to it. The Warrant Agent shall not be accountable or under any duty
or responsibility for the use by the Company of any Warrant Certificate
authenticated by the Warrant Agent and delivered by it to the Company
pursuant to this Agreement or for the application by the Company of the
proceeds of the issue and sale, or exercise, of the Warrants. The Warrant
Agent shall have no duty or responsibility in case of any default by the
Company in the performance of its covenants or agreements contained herein
or in any Warrant Certificate or in the case of the receipt of any written
demand from a Holder with respect to such default, including, without
limiting the generality of the foregoing, any duty or responsibility to
initiate or attempt to initiate any proceedings at law or otherwise or,
except as provided in Section 5.03 hereof, to make any demand upon the
Company.
SECTION 4.03. Compliance With Applicable Laws. The Warrant Agent agrees to
comply with all applicable federal and state laws imposing obligations on it in
respect of the services rendered by it under this Agreement and in connection
with the Warrants, including (but not limited to) the provisions of United
States federal income tax laws regarding information reporting and backup
withholding. The Warrant Agent expressly assumes all liability for its failure
to comply with any such laws imposing obligations on it, including (but not
limited to) any liability for its failure to comply with any applicable
provisions of United States federal income tax laws regarding information
reporting and backup withholding.
SECTION 4.04. Resignation and Appointment of Successor.
(a) The Company agrees, for the benefit of the Holders from time to time,
that there shall at all times be a Warrant Agent hereunder until all the
Warrants issued hereunder have been exercised or have expired in accordance with
their terms, which
- 19 -
Warrant Agent shall be a bank or trust company organized under the laws of the
United States of America or one of the states thereof, which is authorized under
the laws of the jurisdiction of its organization to exercise corporate trust
powers, has a combined capital and surplus of at least $50,000,000 and has an
office or an agent's office in the United States of America.
(b) The Warrant Agent may at any time resign as such agent by giving
written notice to the Company of such intention on its part, specifying the date
on which it desires such resignation to become effective; provided that such
date shall not be less than three months after the date on which such notice is
given, unless the Company agrees to accept such notice less than three months
prior to such date of effectiveness. The Company may remove the Warrant Agent at
any time by giving written notice to the Warrant Agent of such removal,
specifying the date on which it desires such removal to become effective. Such
resignation or removal shall take effect upon the appointment by the Company, as
hereinafter provided, of a successor Warrant Agent (which shall be a bank or
trust company qualified as set forth in Section 4.04(a)) and the acceptance of
such appointment by such successor Warrant Agent. The obligation of the Company
under Section 4.02(a) shall continue to the extent set forth therein
notwithstanding the resignation or removal of the Warrant Agent.
(c) If at any time the Warrant Agent shall resign, or shall cease to be
qualified as set forth in Section 4.04(a), or shall be removed, or shall become
incapable of acting, or shall be adjudged a bankrupt or insolvent, or shall file
a petition seeking relief under any applicable Federal or State bankruptcy or
insolvency law or similar law, or make an assignment for the benefit of its
creditors or consent to the appointment of a receiver, conservator or custodian
of all or any substantial part of its property, or shall admit in writing its
inability to pay or to meet its debts as they mature, or if a receiver or
custodian of it or of all or any substantial part of its property shall be
appointed, or if an order of any court shall be entered for relief against it
under the provisions of any applicable Federal or State bankruptcy or similar
law, or if any public officer shall have taken charge or control of the Warrant
Agent or of its property or affairs, for the purpose of rehabilitation,
conservation or liquidation, a successor Warrant Agent, qualified as set forth
in Section 4.04(a), shall be appointed by the Company by an instrument in
writing, filed with the successor Warrant Agent. Upon the appointment as herein
provided of a successor Warrant Agent and acceptance by the latter of such
appointment, the Warrant Agent so superseded shall cease to be Warrant Agent
under this Agreement.
(d) Any successor Warrant Agent appointed under this Agreement shall
execute, acknowledge and deliver to its predecessor and to the Company an
instrument accepting such appointment, and thereupon such successor Warrant
Agent, without any further act, deed or conveyance, shall become vested with all
the authority, rights, powers, trusts, immunities, duties and obligations of
such predecessor with like effect as if originally named as Warrant Agent under
this Agreement, and such predecessor, upon payment of its charges and
disbursements then unpaid, shall thereupon become obligated
- 20 -
to transfer, deliver and pay over, and such successor Warrant Agent shall be
entitled to receive, all monies, securities and other property on deposit with
or held by such predecessor, as Warrant Agent under this Agreement.
(e) Any corporation into which the Warrant Agent may be merged or converted
or any corporation with which the Warrant Agent may be consolidated, or any
corporation resulting from any merger, conversion or consolidation to which the
Warrant Agent shall be a party, or any corporation to which the Warrant Agent
shall sell or otherwise transfer all or substantially all the assets and
business of the Warrant Agent, in each case provided that it shall be qualified
as set forth in Section 4.04(a), shall be the successor Warrant Agent under this
Agreement without the execution or filing of any paper or any further act on the
part of any of the parties to this Agreement, including, without limitation, any
successor to the Warrant Agent first named above.
ARTICLE V
MISCELLANEOUS
SECTION 5.01. Amendments.
(a) This Agreement and any Warrant Certificate may be amended by the
parties hereto by executing a supplemental warrant agreement (a "Supplemental
Agreement"), without the consent of the Holder of any Warrant, for the purpose
of (i) curing any ambiguity, or curing, correcting or supplementing any
defective provision contained herein, or making any other provisions with
respect to matters or questions arising under this Agreement that is not
inconsistent with the provisions of this Agreement or the Warrant Certificates,
(ii) evidencing the succession of another corporation to the Company and the
assumption by any such successor of the covenants of the Company contained in
this Warrant Agreement and the Warrants, (iii) evidencing and providing for the
acceptance of appointment by a successor Warrant Agent with respect to the
Warrants, [If Warrants are to be issued in Book-Entry form: (iv) evidencing and
providing for the acceptance of appointment by a successor Depository with
respect to each Book-Entry Warrant Certificate, (v) issuing definitive Warrant
Certificates in accordance with paragraph (b) of Section 1.03,] (vi) adding to
the covenants of the Company for the benefit of the Holders or surrendering any
right or power conferred upon the Company under this Agreement, (vii) appointing
a successor Warrant Agent, or (viii) amending this Agreement and the Warrants in
any manner that the Company may deem to be necessary or desirable and that will
not adversely affect the interests of the Holders in any material respect.
(b) The Company and the Warrant Agent may amend this Agreement and the
Warrants by executing a Supplemental Agreement with the consent of the Holders
of not fewer than a majority of the unexercised Warrants affected by such
amendment, for
- 21 -
the purpose of adding any provisions to or changing in any manner or eliminating
any of the provisions of this Agreement or of modifying in any manner the rights
of the Holders under this Agreement; provided, however, that, without the
consent of each Holder of Warrants affected thereby, no such amendment may be
made that (i) changes the Warrants so as to reduce the [principal amount]
[number] of Warrant Securities purchasable upon exercise of the Warrants or so
as to increase the exercise price [If Warrants for Common Stock are offered:
(other than as provided by Section 2.04)], (ii) shortens the period of time
during which the Warrants may be exercised, (iii) otherwise adversely affects
the exercise rights of the Holders in any material respect, or (iv) reduces the
number of unexercised Warrants the consent of the Holders of which is required
for amendment of this Agreement or the Warrants.
SECTION 5.02. Merger, Consolidation, Sale, Transfer or Conveyance. The
Company may consolidate or merge with or into any other corporation, partnership
or trust or sell, lease, transfer or convey all or substantially all of its
assets to any other corporation, partnership or trust, provided that (i) either
(x) the Company is the continuing entity or (y) the entity (if other than the
Company) that is formed by or results from any such consolidation or merger or
that receives such assets is organized and existing under the laws of the United
States of America or a state thereof and such entity assumes the obligations of
the Company with respect to the performance and observance of all of the
covenants and conditions of this Agreement to be performed or observed by the
Company and (ii) the Company or such successor, as the case may be, must not
immediately be in default under this Agreement. If at any time there shall be
any consolidation or merger or any sale, lease, transfer, conveyance or other
disposition of all or substantially all of the assets of the Company, then in
any such event the successor or assuming entity shall succeed to and be
substituted for the Company, with the same effect as if it had been named herein
and in the Warrant Certificates as the Company; the Company shall thereupon be
relieved of any further obligation hereunder or under the Warrants, and, in the
event of any such sale, lease, transfer, conveyance (other than by way of lease)
or other disposition, the Company as the predecessor corporation may thereupon
or at any time thereafter be dissolved, wound up or liquidated. Such successor
or assuming corporation thereupon may cause to be signed, and may issue either
in its own name or in the name of the Company, Warrant Certificates evidencing
the Warrants not theretofore exercised, in exchange and substitution for the
Warrant Certificates theretofore issued. Such Warrant Certificates shall in all
respects have the same legal rank and benefit under this Agreement as the
Warrant Certificates evidencing the Warrants theretofore issued in accordance
with the terms of this Agreement as though such new Warrant Certificates had
been issued at the date of the execution hereof. In any case of any such merger
or consolidation or sale, lease, transfer, conveyance or other disposition of
all or substantially all of the assets of the Company, such changes in
phraseology and form (but not in substance) may be made in the new Warrant
Certificates, as may be appropriate.
- 22 -
SECTION 5.03. Notices and Demands to the Company and Warrant Agent. If the
Warrant Agent shall receive any notice or demand addressed to the Company by the
Holder [If Warrants are to be issued in Book-Entry form: or a Participant, as
the case may be], the Warrant Agent shall promptly forward such notice or demand
to the Company.
SECTION 5.04. Addresses. Any communications from the Company to the Warrant
Agent with respect to this Agreement shall be addressed to ____________________,
Attention: ________________________, and any communications from the Warrant
Agent to the Company with respect to this Agreement shall be addressed to
Monsanto Company, 000 Xxxxx Xxxxxxxxx Xxxxxxxxx, Xx. Xxxxx, Xxxxxxxx 00000,
Attention: _____________ (or such other address as shall be specified in writing
by the Warrant Agent or by the Company, as the case may be). The Company or the
Warrant Agent shall give notice to the Holders of Warrants by mailing written
notice by first class mail, postage prepaid, to such Holders as their names and
addresses appear in the books and records of the Warrant Agent [or, prior to the
Detachment Date, on the register of the Securities].
SECTION 5.05. GOVERNING LAW. THIS AGREEMENT AND EACH WARRANT CERTIFICATE
AND ALL RIGHTS HEREUNDER AND THEREUNDER AND PROVISIONS HEREOF AND THEREOF SHALL
BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK (WITHOUT REFERENCE TO APPLICABLE CONFLICTS OF LAW PROVISIONS).
SECTION 5.06. Delivery of Prospectus. The Company shall furnish to the
Warrant Agent sufficient copies of a prospectus relating to the Warrant
Securities deliverable upon exercise of Warrants and complying in all material
respects with the Securities Act of 1933, as amended (the "Prospectus"), and the
Warrant Agent agrees that upon the exercise of any Warrant, the Warrant Agent
shall deliver a Prospectus to the Holder of such Warrant, prior to or
concurrently with the delivery of the Warrant Securities issued upon such
exercise.
SECTION 5.07. Obtaining of Governmental Approvals. The Company shall from
time to time take all action which may be necessary to obtain and keep effective
any and all permits, consents and approvals of governmental agencies and
authorities and securities acts filings under United States Federal and state
laws, which the Company may deem necessary or appropriate in connection with the
issuance, sale, transfer and delivery of the Warrants, the exercise of the
Warrants, the issuance, sale, transfer and delivery of the Warrant Securities to
be issued upon exercise of Warrants or upon the expiration of the period during
which the Warrants are exercisable.
- 23 -
SECTION 5.08. Payment of Taxes. The Company will pay all stamp and other
duties, if any, to which, under the laws of the United States of America, this
Agreement or the original issuance of the Warrants may be subject.
SECTION 5.09. Benefits of Warrant Agreement. Nothing in this Agreement or
any Warrant Certificate expressed or implied and nothing that may be inferred
from any of the provisions hereof or thereof is intended, or shall be construed,
to confer upon, or give to, any person or corporation other than the Company,
the Warrant Agent and their respective successors and assigns, [If Warrants are
to be issued in Book-Entry form: the Beneficial Owners] and the Holders any
right, remedy or claim under or by reason of this Agreement or any Warrant
Certificate or of any covenant, condition, stipulation, promise or agreement
hereof or thereof; and all covenants, conditions, stipulations, promises and
agreements contained in this Agreement or any Warrant Certificate shall be for
the sole and exclusive benefit of the Company and the Warrant Agent and their
respective successors and assigns and of the [If Warrants are to be issued in
Book-Entry form: Beneficial Owners and] Holders.
SECTION 5.10. Headings. The descriptive headings of the several Articles
and Sections of this Agreement are inserted for convenience only and shall not
control or affect the meaning or construction of any of the provisions hereof.
SECTION 5.11. Severability. If any provision in this Agreement or in any
Warrant Certificate shall be invalid, illegal or unenforceable in any
jurisdiction, the validity, legality and enforceability of the remaining
provisions, or of such provisions in any other jurisdiction, shall not in any
way be affected or impaired thereby.
SECTION 5.12. Counterparts. This Agreement may be executed in any number of
counterparts, each of which so executed shall be deemed to be an original; but
such counterparts shall together constitute but one and the same instrument.
SECTION 5.13. Inspection of Agreement. A copy of this Agreement shall be
available at all reasonable times at the principal corporate trust office of the
Warrant Agent and at the office of the Company at 000 Xxxxx Xxxxxxxxx Xxxxxxxxx,
Xx. Xxxxx, Xxxxxxxx 00000, for inspection by any Holder. The Warrant Agent may
require any such Holder to submit satisfactory proof of ownership for inspection
by it.
SECTION 5.14. Board of Director Action; No Liability of Directors,
Officers, Employees or Shareholders.
(a) Any determination that may be made by the Board of Directors of the
Company under this Agreement may be made by a duly authorized committee of the
Board or, to the extent permitted by applicable corporate law, by an individual
acting pursuant to authority granted by the Board of Directors.
- 24 -
(b) No director, officer, employee or shareholder of the Company, as such,
shall have any liability under this Agreement or the Warrants. By accepting the
Warrants, each holder of Warrants agrees to the foregoing and waives and
releases all such liability.
SECTION 5.15. Warrant Holders Not Shareholders. Nothing contained in this
Agreement or in any of the Warrant Certificates shall be construed as conferring
upon the holders thereof, as such, the right to vote or receive dividends or
notices as shareholders of the Company in respect of any meeting of shareholders
for the election of directors of the Company or any other matter to vote at any
such meeting, to exercise any rights whatsoever as shareholders of the Company
or to be deemed for any purpose the holder of Shares or of any other securities
of the Company that may at any time be issuable on the exercise or conversion of
the Warrant Certificates, nor shall anything contained herein or in the Warrant
Certificates be construed to confer upon the holders thereof, as such, any of
the other rights of a shareholder of the Company.
- 25 -
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
MONSANTO COMPANY
By: __________________________
Authorized Officer
[WARRANT AGENT]
By: __________________________
Authorized Officer
- 26 -
EXHIBIT A
---------
[FORM OF WARRANT CERTIFICATE]
[Form of legend if Securities with Warrants that are not immediately detachable
or Warrants that are not immediately exercisable are offered: [PRIOR TO
_______________,] THIS WARRANT CERTIFICATE [(i) CANNOT BE TRANSFERRED OR
EXCHANGED UNLESS ATTACHED TO A [TITLE OF SECURITY] AND (II)] CANNOT BE EXERCISED
IN WHOLE OR IN PART.]
EXERCISABLE ONLY IF COUNTERSIGNED BY THE WARRANT
AGENT AS PROVIDED HEREIN.
Warrant Certificate evidencing
Warrants to Purchase
[Title of Warrant Securities]
as described herein.
MONSANTO COMPANY
No. ___________ CUSIP No. _____________
VOID AFTER [5:00 P.M.], NEW YORK TIME, ON _______ __, ___
This certifies that ________________________ or registered assigns is
the registered holder of [insert number initially issued] warrants to purchase
certain securities (the "Warrants"). Each Warrant entitles the holder thereof,
subject to the provisions contained herein and in the Warrant Agreement referred
to below, to purchase from Monsanto Company, a Delaware corporation (the
"Company"), [$_________ principal amount] [______] of the Company's [title of
Securities purchasable upon exercise of Warrants] [If Warrants for Depositary
Shares are to be offered: , each representing a 1/__th interest in a share of
[title of securities represented by the Depositary Shares]] (the "Warrant
Securities" [If Warrants for Depositary Shares are to be offered: , which term
shall also refer, as appropriate, to such [title of securities represented by
the Depositary Shares]), [issued or to be issued under the Indenture (as
hereinafter defined)], at the Exercise Price set forth below. The exercise price
of each Warrant (the "Exercise Price") shall be [modify as appropriate to
reflect the terms of the offered Warrants].
A-1
Subject to the terms of the Warrant Agreement, each Warrant evidenced
hereby may be exercised in whole but not in part at any time, as specified
herein, [Unless Warrants may be exercised on only one date: on any Business Day
(as defined below) occurring during the period (the "Exercise Period")
commencing on [the date of issuance thereof] [________________ __, ____] and
ending at 5:00 P.M., New York time,] on ____________ __, ____ (the "Expiration
Date"). Each Warrant remaining unexercised after 5:00 P.M., New York time, on
the Expiration Date shall become void, and all rights of the holder of this
Warrant Certificate evidencing such Warrant shall cease.
The holder of the Warrants represented by this Warrant Certificate may
exercise any Warrant evidenced hereby by delivering, not later than 5:00 P.M.,
New York time, on [Unless Warrants may be exercised on only one date: any
Business Day during the Exercise Period (the "Exercise Date")] [If Warrants may
be exercised on only one date: the Expiration Date] to [name of Warrant Agent]
(the "Warrant Agent", which term includes any successor warrant agent under the
Warrant Agreement described below) at its corporate trust department at
___________________, (i) this Warrant Certificate [For Book-Entry Warrant
Certificate: and the Warrants to be exercised (the "Book-Entry Warrants") free
on the records of [The Depository Trust Company] (the "Depository") to an
account of the Warrant Agent at the Depository designated for such purpose in
writing by the Warrant Agent to the Depository], (ii) an election to purchase
("Election to Purchase"), [For definitive Warrant Certificates: properly
executed by the holder hereof on the reverse of this Warrant Certificate] [For
Book-Entry Warrant Certificates: properly executed by the institution in whose
account the Warrant is recorded on the records of the Depository (the
"Participant"), and substantially in the form included on the reverse of hereof]
and (iii) the Exercise Price for each Warrant to be exercised in lawful money of
the United States of America by certified or official bank check or by bank wire
transfer in immediately available funds. If any of (a) this Warrant Certificate
[For Book-Entry Warrant Certificates: or the Book-Entry Warrants], (b) the
Election to Purchase, or (c) the Exercise Price therefor, is received by the
Warrant Agent after 5:00 P.M., New York time, on [Unless Warrants may be
exercised on only one date: the specified Exercise Date, the Warrants will be
deemed to be received and exercised on the Business Day next succeeding the
Exercise Date. If the date specified as the Exercise Date is not a Business Day,
the Warrants will be deemed to be received and exercised on the next succeeding
day which is a Business Day. If the Warrants to be exercised are received or
deemed to be received after] the Expiration Date, the exercise thereof will be
null and void and any funds delivered to the Warrant Agent will be returned to
the holder as soon as practicable. In no event will interest accrue on funds
deposited with the Warrant Agent in respect of an exercise or attempted exercise
of Warrants. The validity of any exercise of Warrants will be determined by the
Warrant Agent in its sole discretion and such determination will be final and
binding upon the holder of the Warrants and the Company. Neither the Warrant
Agent nor the Company shall have any obligation to inform a holder of Warrants
of the invalidity of any exercise of Warrants. As used herein, the term
"Business Day" means any day which is not a Saturday or Sunday and is not a
legal holiday or a day on which banking institutions generally are authorized or
obligated by law or regulation to close in New York [or _____].
A-2
Warrants may be exercised only in whole numbers of Warrants. [Unless
Warrants may be exercised on only one date: If fewer than all of the Warrants
evidenced by this Warrant Certificate are exercised, a new Warrant Certificate
for the number of Warrants remaining unexercised shall be executed by the
Company and countersigned by the Warrant Agent as provided in Section 1.02 of
the Warrant Agreement, and delivered to the holder of this Warrant Certificate
at the address specified on the books of the Warrant Agent or as otherwise
specified by such registered holder.]
This Warrant Certificate is issued under and in accordance with the
Warrant Agreement, dated as of ___________ __, ____ (the "Warrant Agreement"),
between the Company and the Warrant Agent and is subject to the terms and
provisions contained in the Warrant Agreement, to all of which terms and
provisions the holder of this Warrant Certificate [For Book-Entry Warrant
Certificate: and the beneficial owners of the Warrants represented by this
Warrant Certificate] consent[s] by acceptance hereof. Copies of the Warrant
Agreement are on file and can be inspected at the above-mentioned office of the
Warrant Agent and at the office of the Company at 000 Xxxxx Xxxxxxxxx Xxxxxxxxx,
Xx. Xxxxx, Xxxxxxxx 00000.
[If the Warrant Securities are Debt Securities: The Warrant Securities
to be issued and delivered upon the exercise of the Warrants evidenced by this
Warrant Certificate will be issued under and in accordance with the Indenture,
dated as of _________ __, ____ (the "Indenture"), between the Company and [name
of trustee], as trustee (together with any successor or successors as such
trustee, the "Trustee"), and will be subject to the terms and provisions
contained in the Warrant Securities and in the Indenture.] The accrual of
[interest] [dividends], if any, on the Warrant Securities issued upon the valid
exercise of any Warrant will be governed by the terms of the applicable
[Indenture] [certificate of designations] and such Warrant Securities. From and
after the issuance of such Warrant Securities, the former holder of the Warrants
exercised will be entitled to the benefits of the [Indenture] [certificate of
designations] under which such Warrant Securities are issued and such former
holder's right to receive payments of [principal of (and premium, if any) and
interest, if any, on] [dividends and any other amounts payable in respect of]
the Warrant Securities shall be governed by, and shall be subject to, the terms
and provisions of such [Indenture] [certificate of designations] and the Warrant
Securities. Copies of the [Indenture, including the form of the Warrant
Securities,] [certificate of designations] are on file at the corporate trust
office of the Trustee.]
[If Warrants for Common Stock are offered: The Exercise Price and the
number of Warrant Securities purchasable upon the exercise of each Warrant shall
be subject to adjustment [as shall be determined by the Warrant Agent, which
determination shall be final and binding upon the holders of the Warrants and
the Company][as provided pursuant to Section 2.04 of the Warrant Agreement].
A-3
[If Securities and Warrants are to be offered together: [If Warrants
are not immediately detachable: Prior to the Detachment Date,] The Warrants
represented by this Warrant Certificate may be exchanged or transferred only
together with the [title of Security] (the "Security") to which the Warrants are
attached, and only for the purpose of effecting, or in conjunction with, an
exchange or transfer of such Security. Additionally, [If Warrants are not
immediately detachable: on or prior to the Detachment Date,] each transfer of
such Security on the register of the Securities shall operate also to transfer
the Warrants to which such Securities was initially attached. [If Warrants are
not immediately detachable: From and after the Detachment Date, the above
provisions shall be of no further force and effect.]] Upon due presentment for
registration of transfer or exchange of this Warrant Certificate at the
corporate trust office of the Warrant Agent, the Company shall execute, and the
Warrant Agent shall countersign and deliver, as provided in Section 1.02 of the
Warrant Agreement, in the name of the designated transferee one or more new
Warrant Certificates of any authorized denomination evidencing in the aggregate
a like number of unexercised Warrants, subject to the limitations provided in
the Warrant Agreement.
Neither this Warrant Certificate nor the Warrants evidenced hereby
shall entitle the holder hereof or thereof to any of the rights of a holder of
the Warrant Securities, including, without limitation, [the right to receive the
payments of principal of (and premium, if any), and interest, if any, on Debt
Securities purchasable upon such exercise or to enforce any of the covenants in
the applicable Indenture] [the right to receive dividends, if any, or payments
upon the liquidation, dissolution or winding up of the Company or to exercise
voting rights, if any].
The Warrant Agreement and this Warrant Certificate may be amended as
provided in the Warrant Agreement including, under certain circumstances
described therein, without the consent of the holder of this Warrant Certificate
or the Warrants evidenced thereby.
THIS WARRANT CERTIFICATE AND ALL RIGHTS HEREUNDER AND UNDER THE
WARRANT AGREEMENT AND PROVISIONS HEREOF AND THEREOF SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK (WITHOUT
REFERENCE TO APPLICABLE CONFLICTS OF LAW PROVISIONS).
This Warrant Certificate shall not be entitled to any benefit under
the Warrant Agreement or be valid or obligatory for any purpose, and no Warrant
evidenced hereby may be exercised, unless this Warrant Certificate has been
countersigned by the manual signature of the Warrant Agent.
A-4
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
Dated as of ________ __, ____
MONSANTO COMPANY
By: ________________________
Authorized Officer
[NAME OF WARRANT AGENT],
as Warrant Agent
By: ________________________
Authorized Officer
A-5
[REVERSE]
Instructions for Exercise of Warrant
------------------------------------
To exercise the Warrants evidenced hereby, the holder [For Book-Entry
Warrant Certificate: or Participant] must, by 5:00 P.M., New York time, on the
specified Exercise Date, deliver to the Warrant Agent at its corporate trust
department, a certified or official bank check or a wire transfer in immediately
available funds, in each case payable to the Warrant Agent at Account No. ____,
in an amount equal to the Exercise Price in full for the Warrants exercised. In
addition, the Warrant holder [For Book-Entry Warrant Certificates: or
Participant] must provide the information required below and deliver this
Warrant Certificate to the Warrant Agent at the address set forth below [For
Book-Entry Warrant Certificates: and the Book-Entry Warrants to the Warrant
Agent in its account with the Depository designated for such purpose]. This
Warrant Certificate and the Election to Purchase must be received by the Warrant
Agent by 5:00 P.M., New York time, on the specified Exercise Date.
ELECTION TO PURCHASE
TO BE EXECUTED IF WARRANT HOLDER DESIRES
TO EXERCISE THE WARRANTS EVIDENCED HEREBY
The undersigned hereby irrevocably elects to exercise, on __________,
____ (the "Exercise Date"), _____________ Warrants, evidenced by this Warrant
Certificate, to purchase, [$_____________ principal amount] [_________________]
of the [title of Securities purchasable upon exercise of Warrants] [If Warrants
for Depositary Shares are to be offered: , each representing a 1/__th interest
in a share of [title of securities represented by the Depositary Shares]] (the
"Warrant Securities") of Monsanto Company, a Delaware corporation (the
"Company"), and represents that on or before the Exercise Date such holder has
tendered payment for such Warrant Securities by certified or official bank check
or bank wire transfer in immediately available funds to the order of the Company
c/o [Name and address of Warrant Agent], in the amount of $_____________ in
accordance with the terms hereof. The undersigned requests that said [principal
amount of] [number of] Warrant Securities be in fully registered form, in the
authorized denominations, registered in such names and delivered, all as
specified in accordance with the instructions set forth below.
[Unless Warrants may be exercised on only one date: If said [principal
amount] [number] of Warrant Securities is less than all of the Warrant
Securities purchasable hereunder, the undersigned requests that a new Warrant
Certificate
A-6
evidencing the remaining balance of the Warrants evidenced hereby be issued and
delivered to the holder of the Warrant Certificate unless otherwise specified in
the instructions below.]
Dated: ______________ __, ____
Name__________________________
------------------------- (Please Print)
/ / / /- / / /- / / / / /
-------------------------
(Insert Social Security
or Other Identifying
Number of Holder) Address_______________________
_______________________
Signature_____________________
This Warrant may only be exercised by presentation to the Warrant Agent at one
of the following locations:
By hand at
By mail at
The method of delivery of this Warrant Certificate is at the option and risk of
the exercising holder and the delivery of this Warrant Certificate will be
deemed to be made only when actually received by the Warrant Agent. If delivery
is by mail, registered mail with return receipt requested, properly insured, is
recommended. In all cases, sufficient time should be allowed to assure timely
delivery.
(Instructions as to form and delivery of Warrant Securities and/or Warrant
Certificates)
A-7
Name in which Warrant Securities
are to be registered if other than
in the name of the registered holder
of this Warrant Certificate:
______________________________
Address to which Warrant Securities
are to be mailed if other than to the
address of the registered holder of
this Warrant Certificate as shown on
the books of the Warrant Agent:
______________________________
(Street Address)
______________________________
(City and State) (Zip Code)
A-8
[Except for Book-Entry Warrant Certificate:
Name in which Warrant Certificate
evidencing unexercised Warrants, if any,
are to be registered if other than in the
name of the registered holder of this
Warrant Certificate:
_____________________________
Address to which certificate representing
unexercised Warrants, if any, are to be
mailed if other than to the address of
the registered holder of this Warrant
Certificate as shown on the books of
the Warrant Agent:
______________________________
(Street Address)
______________________________
(City and State) (Zip Code) ]
Dated:
______________________________
Signature
([Except for Book-Entry Warrant
Certificate: Signature must conform in
all respects to the name of the holder
as specified on the face of this Warrant
Certificate.] If Warrant Securities, or
a Warrant Certificate evidencing
unexercised Warrants, are to be issued
in a name other than that of the
registered holder hereof or are to be
delivered to an address other than the
address of such holder as shown on the
books of the Warrant Agent, the above
signature must be guaranteed by a member
firm of a registered national stock
exchange, a member of the National
Association of
A-9
Securities Dealers, Inc., a participant
in the Security Transfer Agents
Medallion Program or the Stock Exchange
Medallion Program, or by a commercial
bank or trust company having an office
or correspondent in the United States.)
SIGNATURE GUARANTEE
-------------------
Name of Firm _________________
Address ______________________
Area Code
and Number ___________________
Authorized
Signature ____________________
Name _________________________
Title ________________________
Dated: ________________, 19__
A-10
ASSIGNMENT
(FORM OF ASSIGNMENT TO BE EXECUTED IF WARRANT HOLDER
DESIRES TO TRANSFER WARRANTS EVIDENCED HEREBY)
FOR VALUE RECEIVED, _________________ hereby sell(s), assign(s) and
transfer(s) unto ________________________________
__________________________________ ___________________________________
(Please print name and address (Please insert social security or
including zip code of assignee) other identifying number of assignee)
the rights represented by the within Warrant Certificate and does hereby
irrevocably constitute and appoint ____________ Attorney to transfer said
Warrant Certificate on the books of the Warrant Agent with full power of
substitution in the premises.
Dated:
__________________________________
Signature
(Signature must conform in all respects to
the name of the holder as specified on the
face of this Warrant Certificate and must
bear a signature guarantee by a member firm
of a registered national securities exchange,
a member of the National Association of
Securities Dealers, Inc., a participant in
the Security Transfer Agents Medallion
Program or the Stock Exchange Medallion
Program, or by a commercial bank or trust
company having an office or correspondent in
the United States)
SIGNATURE GUARANTEE
Name of Firm _________________
Address ______________________
Area Code
and Number ___________________
Authorized
Signature ____________________
Name _________________________
Title ________________________
Dated: ________________, 19__
A-11
